Senate Panel OKs Increased Prosecutor Accountability

Michael Morton testifies in support of Senate Bill 825, which would increase prosecutorial accountability, before the Senate Criminal Justice Committee on March 12, 2013.

A day after the premiere of a documentary about his wrongful conviction and a few days after his wedding, exoneree Michael Morton sat before a panel of lawmakers Tuesday as they approved a key reform measure that he hopes will ensure accountability for prosecutors.

"When [prosecutors] step over the line, when they cut corners or break the law, or however you want to phrase it, our most fundamental basic liberties are taken by the very government officials who are entrusted to protect us," Morton told the Senate Criminal Justice Committee. "That in itself is a crime, not just of law, but of morality."

Senate Bill 825, by state Sen. John Whitmire, D-Houston, would extend the statute of limitations for offenses involving evidence suppression by district attorneys. Under current law, the four-year statute of limitations begins ticking on such offenses when they occur. Whitmire's proposal would begin the clock on the statute of limitations at the time a wrongfully convicted defendant is released from prison. It would also require the State Bar of Texas to issue a public reprimand when prosecutors commit such violations. In a 5-0 vote, the Criminal Justice Committee approved the measure, which now goes to the full Senate.

Whitmire, the chairman of the committee, expressed amazement Tuesday at Morton's calm and grace in the wake of his ordeal.

"Let me simply say, we are sorry for your experience, that the system failed you, and we thank for being here to try correct some wrongs as we go forward," Whitmire said.

The senator has said the bill was inspired by the Morton case. Convicted in 1987 of murdering his wife in their North Austin home, Morton was sentenced to life in prison. He served nearly 25 years before DNA evidence led to his exoneration in 2011. In the investigation of his wrongful conviction, Morton's lawyers say they discovered that the prosecutor, Ken Anderson, who is now a state district judge in Williamson County, had withheld critical evidence. Anderson has denied allegations of wrongdoing.

The items that Morton's lawyers say were withheld include a transcript of a phone call in which Morton’s mother-in-law recounted to an investigator a conversation with her 3-year-old grandson, who said he saw a “monster” beat his mother to death. He said his father was not at home at the time. Morton's lawyers also found reports from neighbors who told police that they saw a man in a green van parked near the Mortons' home several times before the crime.

During a rare court of inquiry hearing in February, a judge heard evidence about Anderson's role in the wrongful conviction. The judge is set to decide this year whether Anderson should face criminal charges. In emotional and indignant testimony, Anderson said that he would have told Morton's lawyers about that information, but that he was not required to turn it over. He also argued that the statute of limitations for any alleged offenses has long expired.

The State Bar of Texas has also filed a disciplinary case against Anderson, alleging that he deliberately withheld evidence and made false statements to the court during the trial that led to Morton’s wrongful conviction. Anderson's lawyers said in court filings that the Texas State Bar’s claims that the former district attorney violated state ethics rules in the prosecution of Morton are barred by the statute of limitations.

Discipline for prosecutors is rare in Texas. Between 1989 and 2011, at least 86 Texas defendants had their convictions overturned, according to the National Registry of Exonerations. In an extensive analysis last year, The Texas Tribune found that in nearly one-quarter of those cases — 21 in total — courts ruled that prosecutors made mistakes that in most instances contributed to the wrong outcome. (See an interactive presentation with details about all the cases.)

In the cases, judges found that prosecutors broke basic legal and ethical rules, suppressing important evidence and witness testimony and making improper arguments to jurors. Despite the courts’ findings of some serious missteps, the State Bar of Texas reported very little public discipline of prosecutors in recent history.

The State Bar does not track discipline of prosecutors separately from other lawyers. But the chief disciplinary counsel for the State Bar said that since 1985, she could recall just three prosecutors who were publicly reprimanded. None of those reprimands were related to the 86 wrongful convictions.

Ron Bunch, chairman of the State Bar's Commission for Lawyer Discipline — the agency that has filed civil litigation against Anderson — told the committee that although the commission favors expanding the statute of limitations, its members have reservations about the requirement for public discipline in the bill. Current law, he said, provides adequate guidance for the commission to administer appropriate discipline.

Since his 2011 release from prison, Morton has devoted much of his time to seeking reforms to the criminal justice system that would prevent future wrongful convictions. After the South By Southwest Film Festival premiere Monday night of the film An Unreal Dream: The Michael Morton Story, the exoneree asked audience members to contact their legislators and remember to vote.

He told the committee on Tuesday that he doesn't want revenge for Anderson, but he wants to prevent others from experiencing the tragedy that befell him.

"Most of the prosecutors are good guys, they're doing good work that needs to be done," Morton said. "But it happens that there are some bad apples out there."

Whitmire's bill is one of a number of measures Morton has endorsed in his efforts to promote reform. Perhaps the most controversial measure so far is Senate Bill 1611 by state Sen. Rodney Ellis, D-Houston. The measure would enact mutual discovery laws similar to those in 49 other states, requiring both prosecutors and defense lawyers to turn over to one another certain evidence in their case files. While prosecutors and some criminal defense lawyers support the measure, other defense lawyers argue that because the state has the burden of proof in criminal cases, only state lawyers should be forced to share their files. In past years, the opposition of defense lawyers has led to the demise of mutual discovery measures.

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